Immigrant Policy Project

Immigration/Immigrant Policy Summary of Federal Action 2004
January 3, 2005

In 2004, Congress sought action on a range of issues affecting immigrants, from health and education benefits to controls on driver’s licenses and cooperation of state law enforcement with federal immigration authorities.  In the end, however, only one bill passed, related to new federal standards for driver’s licenses. A provision that would have barred states from issuing licenses to unauthorized immigrants was removed during conference.

Enacted

Intelligence Reform Act of 2004 and State Drivers’ Licenses

Following up on the 9/11 Commission report, Congress enacted reform of the nation’s intelligence operations in December, 2004.  S.2845 overturns longstanding state authority by creating new federal standards for content and features of state-issued driver’s licenses and identification cards.  The law requires a negotiated federal rulemaking for developing the standards, including the U.S. Department of Transportation (DOT), U.S. Department of Homeland Security (DHS), state officials that issue driver’s licenses and IDs, elected state officials and other interested parties.  DOT has 18 months to develop “voluntary” standards.  The seven specific minimum standards include:  documenting proof of identity; verifying identity documents; processing applications; developing security standards; standards for common machine-readable identification information; requiring states to confiscate licenses and IDs that are compromised; and determining information to be included on the document (which must include digital photos and machine readable technology.)  Newly issued documents that fail to meet these standards within two years of the promulgation of federal regulations will not be accepted for federal identification purposes (such as boarding a plane, filing an Employment Eligibility Verification form (Form I-9), or receiving federal benefits (social security, Medicare, etc.)  The law also sets federal standards for birth certificates.  DOT must report costs of implementation within nine months; however, the law provides no funding for states to comply.  A provision that would have eliminated state authority to issue licenses to unauthorized immigrants was dropped from conference.

Proposed

Medicaid and SCHIP Option. The Immigrant Children’s Health Improvement Act (ICHIA) would have allowed states to provide coverage for immigrant children and pregnant women who arrived in the United States after August 22, 1996, and draw down the federal match.  This provision would have lifted the current five-year bar on Medicaid and the State Children’s Health Insurance Program (SCHIP).  Originally included in the 2003 Senate Medicare bill, S.1, it was, however, dropped from the conference agreement with the House before final passage.  Stand-alone legislation on this restoration included S.845, introduced by Senator Bob Graham, with 26 cosponsors; and H.R. 1689, by Representative Lincoln Diaz-Balart, with 52 cosponsors. 

TANF.  Congress has extended the Temporary Assistance to Needy Families (TANF) Act eight times since 2002, when the program’s authorization ended.  With this extension, TANF and related programs are authorized through March 31, 2005.   When the Senate's version of welfare reform reauthorization, the PRIDE Act (H.R.4), came to the Senate floor in early April 2004, several amendments affecting immigrants were filed.  One amendment would have allowed states the option to provide SCHIP and Medicaid to illegal immigrants during their first five years in the U.S. (ICHIA, described above).  Another amendment would have provided a two-year extension of SSI for humanitarian immigrants. Several other amendments would require immigrants to show proof of legal status and provide an affidavit of support prior to receiving TANF or Medicaid benefits.  The 109th Congress will need to address the issue of TANF prior to the March 31, 2005 expiration of the extension.

SSI and Refugees.  The 1996 welfare law barred SSI for most legal immigrants, but included an exemption for refugees, asylees, and Cuban-Haitian Entrants to receive SSI benefits for seven years. The seven-year timeframe included the five-year waiting period before they became eligible to apply for citizenship plus an additional 2 years to allow for the processing backlog at INS.  Due to a combination of processing delays and statutory caps for asylees (only 10,000 per year may adjust to permanent resident status), the Administration and Congress have proposed extending the timeframe for these elderly and disabled individuals.  The SSI Extension for Elderly and Disabled Refugees Act, (H.R. 4035), would fund a two-year extension of SSI in fiscal years 2005 – 2007.  The Administration’s FY05 Budget proposed a one-year extension of SSI benefits.   Approximately 7,000-8,000 refugees a year are projected to lose their monthly SSI checks and Medicaid benefits without the extension. 

Tuition and Unauthorized Immigrant Students. The Development, Relief, and Education for Alien Minors Act (the DREAM Act, S. 1545) was voted out of the Senate Judiciary Committee with a 16-3 vote on October 23, 2003 but never made it to the Senate floor.  The DREAM Act would have allowed states to offer in-state tuition rates to unauthorized immigrant students and would have created a path for these students to qualify for legal residency.  To qualify under the bill, immigrant students were required to have arrived in the United States before the age of 16 and have lived here for five years.  S.1545, introduced by Senator Hatch, had 47 cosponsors (see S. Rpt #108-224).  The companion bill in the house, the Student Adjustment Act of 2003 (H.R. 1684), was introduced by Representative Cannon and had 152 cosponsors.

State and Local Enforcement of Immigration Law. Congress introduced legislation that would have required states to enforce federal civil immigration law.  Currently, states and localities can arrest and detain illegal immigrants who violate criminal provisions of the Immigration and Naturalization Act, and civil violations in limited circumstances.  States may also enter into voluntary partnerships with the U.S. Department of Justice and the U.S. Department of Homeland Security.  The Clear Law Enforcement for criminal Alien Removal Act of 2003 (H.R. 2671, known as the “CLEAR” act), was introduced in July by Representative Norwood and had 125 cosponsors. The Homeland Security Enhancement Act of 2003, S.1906 was introduced by Senator Sessions on November 20, 2003, and had 3 cosponsors.  The legislation would have required states to enact law granting police officers the authority to enforce federal immigration law, and would have withheld federal funds for noncompliance.  Efforts were made to add provisions similar to the CLEAR Act as riders to several appropriations bills.  On July 7, 2004 such a provision was offered by Representative Tancredo as an amendment to the appropriations bill for the Departments of Commerce, Justice, State, and the Judiciary.  The amendment was withdrawn. 

Unaccompanied Alien Children.  On November 11, 2004, the Senate passed the Unaccompanied Alien Child Protection Act (S. 1129), legislation that would have established guidelines for the treatment and care of unaccompanied children who arrive in the U.S.  These children include asylum seekers, and children who have been smuggled into the country and may be forced into sweatshop labor or sexual servitude.  The legislation would have provided the Department of Health and Human Service’s Office of Refugee Resettlement with the authority to appoint guardians to these children, establish minimum standards for the care and custody of unaccompanied alien children, and reform procedures for abused and neglected children to access permanent protection.  The legislation was not considered in the House before adjournment.

Implementation/Federal Guidance

Emergency Health.  The Medicare Modernization Act of 2003 included a new reimbursement program for the costs of providing emergency health services for unauthorized immigrants, parolees, and Mexican citizens with biometric border crossing cards.  Section 1011 reimburses health care providers up to $250 million per year for FY2005–2008.  $167 million will be allocated based on the percentage of unauthorized immigrants in the states according to the 2000 Census.  $83 million will be allocated to the six states with the highest number of apprehensions of unauthorized immigrants.  In July 2004, The Centers for Medicare and Medicaid Services (CMS) proposed an implementation plan that would have required providers to collect patient-identifiable data, including name, address, phone number and immigration status, for patients receiving emergency care.  Citing public health concerns that this approach would deter persons from seeking care for communicable disease, NCSL, hospital organizations and immigrant organizations strongly opposed this method.  In response, CMS issued a letter on October 1, 2004 directing providers not to ask patients’ immigration status in order to receive payment.  Final guidance, with an indirect, non-burdensome method, is pending.  (Section 1011 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, P.L. 108-173.)